JUDGMENT of Mr. Justice Gerard Hogan delivered on the 27th day of October 2017

1. This is an appeal brought by the Minister for Justice and Equality against the decision of MacEochaidh J. delivered on 30th January 2014: see Gorry v. Minister for Justice and Equality [2014] IEHC 29. I have had the benefit of reading in advance the judgment which Finlay Geoghegan J. has just delivered and with which I also agree. I gratefully adopt her summary of the facts and her analysis of the difficult constitutional point which this appeal and the other related appeals present.

Article 8 ECHR and Article 41 of the Constitution2. As Finlay Geoghegan J. has noted in her judgment, this matter arises from the marriage of Mr. Gorry, an Irish national, to Ms. Gorry, a Nigerian citizen. After their marriage the couple decided that they would live in Ireland and Ms. Gorry sought residence permission in this State for this purpose. Mr. Gorry had previously travelled to Nigeria, but he found the heat and the humidity in that country did not suit his pre-existing medical condition. Indeed, according to the applicants, after one trip to Nigeria in 2010 Mr. Gorry became very unwell and he was medically advised against further travel to that region.

3. The claims of the Gorrys were considered by the Minister for Justice and Equality in her file note of 6th July 2012. In that note the claim of Ms. Gorry, a Nigerian national, to have her earlier deportation order revoked and to have an entitlement to reside in Ireland is first analysed at some length by reference to Article 8 ECHR and then, subsequently, by reference to Article 41 of the Constitution. It is difficult to avoid the impression from reading the Minister’s file note that she took the view that Article 8 ECHR was to be treated as being directly applicable in our domestic law and, in substance, the principal source of protection of the right to family life, with Article 41 in effect relegated to a subsidiary position.

4. Article 41 was, moreover, treated by the Minister as amounting in substance to having the same legal status and legal content as Article 8 ECHR, so that the claim by reference to Article 41 was treated more or less as supplementary to the ECHR claim. No attempt was made by the Minister to subject the constitutional claim to any detailed analysis independently of that of Article 8 ECHR, beyond observing that there was no authority for the proposition that Article 41 of the Constitution conferred a right upon a citizen to reside in Ireland with his or her spouse:

“As found by the Courts, there appears to be no authority which supports the proposition that an Irish citizen or a person entitled to reside in the State may have a right under Article 41 of the Constitution to reside with his or her spouse in this jurisdiction. Reference is made to the consideration of the position of the couple, as well as the rights of the State under Article 8 [ECHR] consideration above and the conclusions reached therein.”

5. One cannot help thinking that there has been an inversion of the appropriate legal norms on the part of the Minister, along with some confusion regarding the legal status of the ECHR in the domestic law of the State. It may accordingly be appropriate to re-state some key legal propositions in this area. Before doing so, it is important to stress that the analysis which follows is premised entirely on the existence of a valid and regular marriage which would be so recognised under the law of this State. It also assumes that the marriage in question is a genuine and subsisting one.

6. First, the European Convention of Human Rights has not in itself been made part of the domestic law of the State for the purposes of Article 29.6 of the Constitution. The Oireachtas has rather elected to give effect to the ECHR by means of the European Convention of Human Rights Act 2003 (“the 2003 Act”) in a particular way. The Long Title of the 2003 Act explains the object of that Act as being one “to enable further effect to be given, subject to the Constitution, to certain provisions of the Constitution.” The Long Title of the 2003 Act accordingly recognises the primacy of the Constitution so far as the protection of fundamental rights is concerned. This primacy is underscored by s. 5(1) of the 2003 Act which provides that a declaration of Convention incompatibility may be made only “where no other legal remedy is adequate and available”, i.e., thereby implying that a plaintiff must first pursue his constitutional remedies and that it is only where such are inadequate or unavailable that the Convention issue should then be determined.

7. This was the very point which was made by the Supreme Court in Carmody v. Minister for Justice and Equality [2009] IESC 71, [2010] 1 I.R. 635 where Murray C.J. stated:

“Where a citizen’s constitutional rights are violated, statute law or some other rule of law may provide a remedy which vindicates such rights. Where a statute or a rule of law does not provide a remedy for the violation of such a right the citizen is entitled to rely on the provisions of the Constitution for a remedy in vindication of the right. That is what the appellant has done in this case in relying on the provisions of the Constitution, and the principles which flow from it, as affording him a remedy for the alleged breach of his rights. It hardly needs to be said that the provisions of the Act of 2003 cannot compromise in any way the interpretation or application of the Constitution, a principle which is acknowledged in the Long Title to the [2003] Act which states that the effect of the Act is “subject to the Constitution.

Accordingly the Court is satisfied that when a party makes a claim that an Act or any of its provisions is invalid for being repugnant to the Constitution and at the same time makes an application for a declaration of incompatibility of such Act or some of its provisions with the State’s obligations under the Convention, the issue of constitutionality must first be decided. If a Court concludes that the statutory provisions in issue are incompatible with the Constitution and such a finding will resolve the issues between the parties as regards all the statutory provisions impugned, then that is the remedy which the Constitution envisages the party should have. Any such declaration means that the provisions in question are invalid and do not have the force of law. The question of a declaration pursuant to s. 5 concerning such provisions cannot then arise. If, in such a case, a Court decides that the statutory provisions impugned are not inconsistent with the Constitution then it is open to the Court to consider the application for a declaration pursuant to s. 5 if the provisions of the section including the absence of any other legal remedy, are otherwise met.”

8. It is necessarily implicit in this that where (as here) litigants make a claim that their constitutional rights have been infringed, it is this claim which should be considered first by the Minister and it is only in the event that the constitutional claim should fail that the Convention issue should then be considered. Any other approach takes from the primacy of the Constitution as the fundamental law of the State and the principal repository of the protection of fundamental rights in this jurisdiction.

9. Second, the Minister’s approach effectively treats Article 8 ECHR as a directly applicable provision which can be directly enforced as if it were part of the law of the State. As the Supreme Court has frequently made clear, this approach to the ECHR is fundamentally wrong: see, e.g., McD v. L. [2009] IESC 71, [2010] 2 I.R. 199; MD v. Ireland [2012] IESC 10, [2012] 1 I.R. 167. The Minister’s task under the 2003 Act is instead rather to ensure that he performs his statutory functions “in a manner compatible with the State’s obligations under the Convention provisions”: see s. 3(1) of the 2003 Act.

10. Third, the Minister’s analysis assumes that the content and structure of Article 41 of the Constitution is in all material respects substantially similar to that of Article 8 ECHR. The file note makes no attempt to consider or analyse the relevant constitutional provisions. It may be helpful next to consider and compare the relevant provisions of both Article 41 and Article 8 ECHR.

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

12. Article 41.1 of the Constitution provides:

“1. The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2. The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”

13. Article 41.3 pledges that the State will guard the institution of marriage with special care.

14. It is obvious that there is a good deal of overlap between these constitutional provisions and Article 8 ECHR, as it is clear that both endeavour to protect family life. There are nonetheless clear differences between these provisions: the most obvious difference, perhaps, is that Article 8 ECHR protects all forms of family life, including de facto families (see, e.g., Keegan v. Ireland (1994) 18 EHRR 342), whereas the constitutional protection in Article 41 extends only to the family based on marriage: see, e.g., WOR v. EH (Guardianship) [1996] 2 I.R. 248.

15. But so far as the family based on marriage is concerned, there are clear differences of approach. Article 8(1) ECHR speaks simply of the right to “respect” for family life, whereas Article 41.1 describes the family as a “moral institution” possessing “inalienable and imprescriptible rights, antecedent and superior to all positive law.” As I have observed elsewhere (see, e.g, Wicklow County Council v. Fortune [2012] IEHC 406), these latter terms are clear echoes of similar phrases used in the constitutional traditions of continental Europe in the 19th and early 20th century and they are used in a general philosophical, rhetorical and perhaps even lyrical sense.

16. It cannot be supposed that the drafters who used these often high-sounding phrases meant that these words were to be taken absolutely literally. Rights so described can of necessity sometimes be breached, taken away or lost through passage of time. The very language of Article 42A.2 is itself testament to this. It was never intended, for example, that a parent who abused or abandoned a child could not lose access or custody in respect of that child, even if these parental rights were described as “inalienable”, just as much as in a slightly different setting it could not plausibly be argued that a private home built without appropriate planning permission could never be demolished or (subject to important safeguards) a family home re-possessed by a bank, no matter what Article 40.5 said about the “inviolability” of the dwelling: see, e.g., the comments of McKechnie J. in this respect in Meath County Council v. Murray [2017] IESC 25, [2017] 2 I.L.R.M. 297, 335-337.

17. Yet even if these phrases in Article 41 were not meant to be taken absolutely literally, nonetheless their underlying purpose nevertheless cannot be discounted or ignored. The drafters of the Constitution clearly intended thereby to secure the maximum possible degree of protection which might realistically be secured to the protection of family life in a modern society. It is difficult to see how the drafters could have used any stronger and more emphatic language. Unless, therefore, language is to lose all meaning, the fact that Article 8 ECHR refers simply to “respect” for family life, whereas Article 41.1 speaks in more emphatic terms of the rights of the family as being “inalienable and imprescriptible”, is itself an important consideration which cannot be ignored or set aside.

18. Second, it should be observed that the family is described by Article 41.1 as a “moral” institution – language which finds no direct counterpart at all in Article 8 ECHR. As I observed in O’Leary v. Minister for Justice and Equality (No.1) [2011] IEHC 256 – a case concerning the question of whether an Irish citizen had the right to bring her elderly and frail South African national parents into the State - this feature of Article 41.1 pre-supposes:

“….. a system of natural love and support based on ties of blood, kinship and friendship. …..Providing support for parents in advancing years is one dimension of the moral nature of the family as an institution. This precept has been a cornerstone of our moral understanding for at least 2,000 years and it has deep roots in all societies, religions and social systems. By enacting Article 41 of the Constitution, the People clearly espoused a desire to protect the family and to uphold these deeply cherished fundamental values associated with family life…”

19. Co-habitation and joint decision-making of the married couple are also quite obviously - and, if anything, even more fundamental - features of the family as a moral institution in this sense.

20. Third, it is clear that spousal autonomy in respect of all decisions affecting the family is a core constitutional value. This, in essence, is what is embraced by Article 41.1.2 when it speaks of protecting the Family “in its constitution and authority”. These are terms and concepts which again find no direct expression in Article 8 ECHR.

21. The reference here to “constitution” of the family is plainly used in the sense of the composition of the family. This is underscored by the Irish text of the Constitution (“…ráthaíonn an Stát comhsuíomh agus údarás an Teaghlaigh a chaomhnú…”), since the word “comhsuíomh” is simply a verbal noun implying composition (literally, “sitting together”): see Ó Cearúil, Bunreacht na hÉireann: A Study of the Irish Text (Dublin, 1999) at 594. The reference to “authority” is a reference to the authority of the marital couple to make joint decisions concerning their family life.

22. The principle of spousal autonomy thus includes, for example, the right of a couple to make joint decisions about the ownership of a family home as part of the “authority” of the family in Article 41.1.2 which the State guarantees to support: see Re Article 26 and the Matrimonial Homes Bill 1993 [1994] 1 I.R. 305. The same is true of decisions made by the couple regarding family planning and contraception as these are also part of that “authority” as well: see McGee v. Attorney General [1974] I.R. 284.

23. The general approach of the courts in respect of that principle of spousal autonomy was well summed up by Murray J. in North Western Health Board v. H.W. [2001] 3 I.R. 622, 738:

“I think it is well established in our case law that the authority and autonomy explicitly recognised by the Constitution as residing in the family as an institution in our society means that the parents of children have primary responsibility for the upbringing and welfare generally of their children. When exercising their authority in that regard they take precedence over the State and its institutions….the family is endowed with an authority which the Constitution recognises as being superior even to the authority of the State itself. That is not to say that the authority of parents is absolute or that they are immune from State intervention in all circumstances when exercising that authority…..”

24. While these comments were made in the context of parental autonomy over children, these principles also apply to other decisions made by the family in respect of its composition and autonomy. One of these decisions concerns decisions as to where the couple will live. In this context, it should be observed that one part of the “birthright” of every Irish citizen is to live and reside in Ireland should he or she choose to do so: this much is necessarily assumed and directly implied by both Article 2 and Article 9 of the Constitution.

25. While the State is thus obliged to protect this family autonomy, it is clear from the wording of Article 41.1.2 that this autonomy is subject to social order and ensuring the welfare of the Nation and the State. All of this presupposes that the State cannot be expected to protect or give effect to that particular family decision regarding choice of family residence where it is established that State intervention to advance other important social goals (including immigration control) is objectively justified.

26. Considerations of the social order envisaged by Article 41.1.2 include the deterrence of crime, the manipulation of the immigration system, the control of the entry by foreign nationals into the State and the maintenance of the integrity of the social security and health systems. An example of the latter condition is provided by the decision in O’Leary.

27. In that case the Minister had denied permission to two South African nationals to enter the State. The foreign nationals in question were frail and elderly who lived in an isolated South African community where they were vulnerable to criminal gangs and were some distance from medical facilities. Not unnaturally, their daughter (who was an Irish citizen) wanted them to come and live with her and her husband in Ireland so that they could be cared for and looked after by her.

28. That decision clearly engaged the Article 41 rights which I have just described. Given that these parents were of good character and, in view of their age, did not present potential competition in the labour market, it could be said that the State’s interests based on social order in preventing or interfering with that decision were not as pressing as in some other cases. Yet, as I put it in my judgment, the State was nonetheless entitled to insist that the elderly parents:

“….would not be charges on any public funds. Given that our system of health care for the elderly presupposes a form of intergenerational dependence - so that the tax and social security contributions of the present generation of taxpayers is premised on the implicit solidarity to be shown by the next generation of taxpayers when the present generation retires – it is only fair that the State should be able to insist that persons who made no such contributions to this State (or, where appropriate, another EU or EEA State) while employed should [not] be able to do so in their retirement years. This means that the Minister would be entitled to insist as part of any visa condition that the Lemieres [the parents] would not seek to draw on public funds or avail of the wider Irish social security system. The Minister would be further entitled that the Lemieres have up to date and comprehensive private health insurance to ensure that there was no drain on public resources in the health care field.”

29. It is against that general background that the Minister’s decision falls to be considered. It is incorrect to say that the couple are entitled to insist as a matter of constitutional entitlement that their choice of residence must always be accepted by the State. But it is equally incorrect to say – as the Minister in effect did - that the couple’s choice need not be respected unless it is shown that there would be “insurmountable obstacles” to the Irish citizen moving to the country of the third country national, which is essentially the test applied by the European Court of Human Rights in a line of Article 8 ECHR cases ranging from Boultif v. Switzerland [2001] ECHR 497, (2001) 33 EHRR 50 to Jeunnesse v. Netherlands [2014] ECHR 1036, (2015) 60 EHRR 17. For all the reasons I have just stated, Article 41 of the Constitution goes further than Article 8 ECHR in this regard.

30. What is required here is something of a via media between these potentially competing positions. Unlike the position under Article 8 ECHR, the starting point is that the couple’s choice of country of residence must be considered and given considerable weight by the Minister, not least given that in this context at least the right of the Irish citizen to reside in Ireland is for all practical purposes an absolute one. The Minister must then take account of and balance other competing State interests – ranging from the suppression of crime, maintaining the integrity of the asylum system, guarding against unfair competition in the labour market from third country nationals and protecting the social security system. The fact that the couple married when the immigration status of the non-national was known to be precarious is yet another factor which can be weighed in the balance, although in itself it is not necessarily always a dispositive feature. This balancing process must furthermore be proportionate and must respect the constitutional rights of the parties in the Meadows sense of this term (Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 510).

Conclusions31. In summary, therefore, I agree with the conclusions of Finlay Geoghegan J. that the Minister erred in law in assessing the Gorrys’ constitutional rights under Article 41 of the Constitution for all the reasons I have just stated. One can sum this all up by saying that the Minister fell into error by assuming (i) that Article 8 ECHR was directly effective and that it was the primary source of fundamental rights protection; (ii) that Article 41 of the Constitution and Article 8 ECHR are co-extensive for this purpose and (iii) that Article 41 goes no further than Article 8 ECHR in saying that the State is not obliged to respect a married couple’s choice of residence unless the “insurmountable obstacles” test is satisfied.

32. In the light of the fact, however, that the couple have now separated after the commencement of these proceedings I further agree with Finlay Geoghegan J. that in these circumstances it no longer necessary to remit the matter to the Minister for a fresh consideration pursuant to Ord. 84, r. 21(1) RSC.